Carrasco v. W. Vill. Ritz Corp.

Full title: ALBERTO CARRASCO, et al., Plaintiffs, v. WEST VILLAGE RITZ CORPORATION…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jul 11, 2012

11 Civ. 7843 (DLC) (AJP) (S.D.N.Y. Jul. 11, 2012)

Opinion

11 Civ. 7843 (DLC) (AJP)

07-11-2012

ALBERTO CARRASCO, et al., Plaintiffs, v. WEST VILLAGE RITZ CORPORATION d/b/a RITZ ASIA, BANCHA TRUGNIPODIA & KANDA BACHERBAN, Defendants.

ANDREW J. PECK, United States Magistrate Judge

REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :

To the Honorable Denise L. Cote, United States District Judge:

On May 11, 2012, Judge Cote entered a default judgment for plaintiffs Alberto Carrasco and Silvano Ansurez against defendants West Village Ritz Corporation (d/b/a Ritz Asia), Bancha Trugnipodia and Kanda Bancheraban, and referred the case to me for an inquest as to damages. (Dkt. No. 18: Default Judgment; Dkt. No. 17: Orders of Reference.)

For the reasons discussed below, the Court should enter judgment for plaintiffs against the defendants, jointly and severally, for $86,797.75 (plus continuing prejudgment interest of $1.55 a day until judgment is entered).

FACTS

"Where, as here, 'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)). The Complaint

The complaint (Dkt. No. 1) alleges as follows:

Defendant Ritz Asia is a restaurant located at 189 Bleecker Street in Manhattan. (Compl ¶ 14.) Defendants Bancha Trugnipodia and Kanda Bancheraban owned, operated and "controlled significant functions" of Ritz Asia, and "determined the wages and compensation of the employees of [Ritz Asia], including Plaintiffs, and established the schedules of the employees, maintained employee records, and had the authority to hire and fire employees." (Compl. ¶¶ 15-16.)

Plaintiff Carrasco worked for defendants from February 2009 to May 2011; plaintiff Ansurez worked for defendants from May 2010 to December 2010. (Compl. ¶¶ 11-12, 30, 47.) Plaintiffs were primarily employed as kitchen workers, performing various duties including preparing food, cleaning and dishwashing. (Compl. ¶¶ 28, 31, 48.)

During their employment, plaintiffs worked more than ten hours per day and more than forty hours per week. (Compl. ¶¶ 5, 35-36, 52. ) Defendants "maintained a policy and practice of requiring the Plaintiffs . . . to work in excess of forty (40) hours per week without paying them appropriate minimum wage and/or overtime compensation, or spread of hours compensation" as required by the Fair Labor Standards Act ("FLSA") and New York Labor Law. (Compl. ¶¶ 59, 73, 77, 82, 86, 91-92.) Defendants' practices led to "Plaintiffs not receiving payment for all their hours worked, resulting in Plaintiffs' effective rate of pay falling below the required minimum and overtime wage rate." (Comp. ¶ 61.)

The complaint alleges that defendants' violations of the FLSA and New York Labor Law were willful. (Compl. ¶¶ 64, 74, 78, 83, 88, 92.) The complaint asserts claims for unpaid minimum and overtime wages pursuant to the FLSA and New York Labor Law (Compl. ¶¶ 69-89) and spread of hour wages pursuant to New York Labor Law (Compl. ¶¶ 90-93), and also seeks liquidated damages (Compl. Prayer For Relief ¶ n), prejudgment interest (id. ¶ o), and costs and attorneys' fees (id. ¶ p).¹ Inquest Submissions

1 While the complaint was brought as a collective action (Compl. ¶¶ 66-68), plaintiffs never moved for collective action certification. Thus, the Court only considers the individual claims of plaintiffs Carrasco and Ansurez.

In support of inquest damages, plaintiff Carrasco filed an affidavit stating that he worked at Ritz Asia from February 2009 to May 2011, and "regularly worked in excess of 40 hours per week." (Dkt. No. 14: Carrasco Aff. ¶¶ 5, 9.) From February 2009 to February 2010, Carrasco worked "from 11:00 a.m. to 11:00 p.m., Mondays through Thursdays, and from 11:00 a.m. to 12:00 a.m. on Fridays and Saturdays." (Carrasco Aff. ¶ 10.) From March 2010 to May 2011, Carrasco worked from "2:00 p.m. to 2:00 a.m. five days per week." (Carrasco Aff. ¶ 11.) Carrasco's affidait also set out the amount he was paid in wages. (Carrasco Aff. ¶¶ 13-18.) Carrasco also stated that Ritz Asia paid him in cash and never paid him overtime or spread of hours pay. (Carrasco Aff. ¶¶ 12, 20-23.)

Plaintiff Ansurez filed an affidavit stating that he worked at Ritz Asia from May 2010 to December 2010, and that he "regularly worked in excess of 40 hours per week," specifically, seventy-six hours per week. (Dkt. No. 15: Ansurez Aff. ¶¶ 5, 9-10.) Ansurez was paid $650 in cash every two weeks and was never paid overtime or spread of hours pay. (Ansurez Aff. ¶¶ 11-12, 14, 16.)

Plaintiffs claim that defendants owe them a total of $92,852.50 for unpaid wages, overtime and spread-of-hours wages, liquidated damages, prejudgment interest, attorneys fees and costs. (Dkt. No. 16: Faillace Aff. ¶ 28 & Ex. 9: Calculations Chart.)² Plaintiffs' attorney attached a chart, dividing Carrasco's employment into nine separate pay periods and Ansurez's employment into one pay period, and detailing the damage calculations during each period. (Faillace Aff. Ex. 9: Calculations Chart.)

2 Plaintiffs' counsel Faillace stated that plaintiffs are owed $92,477.49. (Faillace Aff. ¶ 28 & Ex. 9). Faillace failed to include costs in his calculations and there is a discrepancy with the attorneys' fees amount that plaintiffs seek. Attorney Faillace claimed $9,690 in attorneys' fees (Faillace Aff. ¶ 27a), but the attached chart calculates attorneys' fees to be $9,490 (Faillace Aff. Ex. 8). After correcting for these mistakes, plaintiffs total claim is for $92,852.50.

Defendants did not submit any papers in opposition to the inquest, and the time to do so has passed. (See Dkt. Nos. 12 & 19: 4/27/12 & 5/14/12 Orders.)

ANALYSIS

I. APPLICABLE LEGAL STANDARDS

The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).

In a FLSA case, in the absence of rebuttal by defendants, plaintiffs' recollection and estimates of hours worked are presumed to be correct. See, e.g., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S. Ct. 1187, 1192 (1946) ("[A]n employee has carried out his burden [of production under the FLSA] if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate."); Grochowski v. Phoenix Constr., 318 F.3d 80, 87-88 (2d Cir. 2003); Harold Levinson Assocs., Inc. v. Chao, 37 F. App'x 19, 20 (2d Cir. 2002), cert. denied, 546 U.S. 933, 126 S. Ct. 415 (2005); Tran v. Alphonse Hotel Corp., 281 F.3d 23, 31 (2d Cir. 2002); Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997); Fu v. Pop Art Int'l Inc., 10 Civ. 8562, 2011 WL 4552436 at *2 (S.D.N.Y. Sept. 19, 2011) (Peck, M.J.), report & rec. adopted as modified on other grounds, 2011 WL 6092309 (S.D.N.Y. Dec. 7, 2011) (Cote, D.J.); Liu v. Jen Chu Fashion Corp., 00 Civ. 4221, 2004 WL 33412 at *3 (S.D.N.Y. Jan. 7, 2004) (Peck, M.J.).³

3 See also, e.g., Alejo v. Darna Rest., 09 Civ. 5436, 2010 WL 5249383 at *3 (S.D.N.Y. Dec. 17, 2010) (Peck, M.J.), report & rec. adopted as modified, 2011 WL 165413 (S.D.N.Y. Jan. 18, 2011); Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d 381, 388-89 (E.D.N.Y. 2007); Chan v. Sung Yue Tung Corp., 03 Civ. 6048, 2007 WL 313483 at *23-24 (S.D.N.Y. Feb. 1, 2007) (Lynch, D.J.); Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 332-33 (S.D.N.Y. 2005); Mascol v. E & L Transp. Inc., 387 F. Supp. 2d 87, 93-94 (E.D.N.Y. 2005); Moon v. Kwon, 248 F. Supp. 2d 201, 219 (S.D.N.Y. 2002) (Lynch, D.J.); Chao v. Vidtape, Inc., 196 F. Supp. 2d 281, 293 (E.D.N.Y. 2002), aff'd as modified on other grounds, 66 F. App'x 261 (2d Cir.), cert. denied, 540 U.S. 1047, 124 S. Ct. 807 (2003); Cao v. Chandara Corp., 00 Civ. 8057, 2001 WL 34366628 at *4-5 (S.D.N.Y. July 25, 2001); Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 624-25 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.).

II. APPLICATION OF THE STANDARDS TO THIS CASE

The Court has reviewed plaintiffs' affidavits and chart (Dkt. No. 14: Carrasco Aff. ¶¶ 10-11; Dkt. No. 15: Ansurez Aff. ¶ 10; Dkt. No. 16: Faillace Aff. Ex. 9: Calculations Chart), and accepts plaintiffs' estimates of hours worked: for Carrasco seventy-four hours per week between February 2009 and February 2010 and sixty hours per week between March 2010 and May 2011, and for Ansurez seventy-six hours per week.

A. Minimum Wage and Overtime Pay

Consistent with the approach approved by this Court in Liu v. Jen Chu Fashion Corp., 00 Civ. 4221, 2004 WL 33412 at *3-6 (S.D.N.Y. Jan. 7, 2004) (Peck, M.J.), plaintiffs' counsel described the methodology employed to determine minimum wage and overtime pay, as follows:

[27c. . . .] Unpaid wages for each period are calculated as the difference between the lawfully required pay per week and the employee's actual pay per week, times the number of weeks in each time period. Lawful pay per week is the greater of the actual regular rate or the statutory minimum wage rate times hours worked per week up to 40 hours per week, plus the greater of the actual overtime rate or the lawful overtime rate times hours worked per week in excess of 40 hours per week. The actual regular rate is the actual weekly pay divided by the total hours worked per week. The actual overtime rate is 1.5 times the actual regular rate. 29 C.F.R. § 778.109; - .113(a).

. . . .

[27]g. Calculations within the Chart - The "Lawful Weekly Pay" column of the chart calculates what the Plaintiff should have been paid per week during each pay period. The actual formula used in this column is as follows:

((greater of minimum wage or calculated base pay) * Hours Per Week up to 40) + ((greater time and a half rate) * (Hours Per Week over forty, if any))

The chart therefore automatically determines whether the effective calculated base rate of pay falls below the minimum wage, and if it does, it discards it, if it does not, it uses it for the subsequent calculations (as the Plaintiffs are entitled to earn at least the minimum wage). The chart then automatically calculates what the hours should have been compensated at under the base rate of pay up to the first 40 hours of work per week, and then at time-and-a-half pay for any hours over 40.

The Chart then subtracts the amount actually paid to Plaintiffs (the "Credited Weekly Pay") and then derives the "Underpayment per Week." This number then when multiplied by the number of weeks in each period derives the total damages due for unpaid minimum wages and overtime for each period ("Unpaid Wages & OT).

(Dkt. No. 16: Faillace Aff. ¶¶ 27c, 27g.)

This Court agrees with the methodology employed by plaintiffs' counsel. Thus, Carrasco and Ansurez are entitled to unpaid minimum and overtime wages as follows:

Pay Period(Carrasco)	No.Weeks inPeriod	HoursPerWeek	LawfulWeeklyPay	CreditedWeeklyPay	OwedMinimum andOvertimeWages
2/1/2009 - 7/23/2009	25	74	$650.65	$325.00	$ 8141.25
7/24/2009 - 12/31/2009	23	74	659.75	325.00	7699.25
1/1/2010 - 2/28/2010	8	60	659.75	325.00	2678.00
3/1/2010 - 5/30/2010	13	60	507.50	425.00	1072.50
6/1/2010 - 8/30/2010	13	60	507.50	420.00	1137.50
9/1/2010 - 11/30/2010	13	60	507.50	415.00	1202.50
12/1/2010 - 12/31/2010	4	60	507.50	410.00	390.00
1/1/2011 - 2/28/2011	8	60	507.50	410.00	780.00
3/1/2011 - 5/31/2011	13	60	507.50	405.00	1332.50
TOTAL	$24433.50

Pay Period(Ansurez)	No.Weeks inPeriod	HoursPerWeek	LawfulWeeklyPay	CreditedWeeklyPay	OwedMinimum andOvertimeWages
5/1/2010 - 12/31/2010	35	76	681.50	325.00	$12477.50
TOTAL	$12477.50

(Faillace Aff. Ex. 9.) Thus, Carrasco and Ansurez are entitled to $24,443.50 and $12,477.50, respectively, in unpaid minimum and overtime wages.

B. Liquidated Damages

Plaintiffs seek to recover liquidated damages under federal law. (Dkt. No. 16: Faillace Aff. ¶ 27d.)⁴

4 Plaintiffs' brief states that they seek liquidated damages under both the FLSA and New York Labor Law. (Dkt. No. 13: Pls. Br. at 10, 12.) Only liquidated damages under the FLSA are appropriate here. First, this Court has previously ruled that plaintiffs may not obtain liquidated damages under both the FLSA and New York Law for the same claims. See, e.g., Fu v. Pop Art Int'l Inc., No. 10 Civ. 8562, 2011 WL 4552436 at *4 (S.D.N.Y. Sep. 19, 2011) (Peck, M.J.), report & rec. adopted as modified on other grounds, 2011 WL 6092309 at *1 (S.D.N.Y. Dec. 7, 2011) (Cote, D.J.). All of plaintiffs' periods of employment are within the three year FLSA liitations period, 29 U.S.C. § 255(a). Second, the calculations chart attached to the application for default judgement only sought liquidated damages under the FLSA. (Faillace Aff. Ex. 9: Calculations Chart). Plaintiffs may not recover more than the amount sought in their default application. Cf., e.g., Pacific Westeel, Inc. v. D & R Installation, 01 Civ. 0293, 2003 WL 22359512 at *2 (S.D.N.Y. Oct. 17, 2003) (Peck, M.J.) ("Rule 54(c) of the Federal Rules of Civil Procedure provides that a 'judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.'"). Thus, plaintiffs may only recover liquidated damages under federal law for unpaid minimum and overtime wages.

Under the FLSA, a plaintiff is entitled to liquidated damages of 100%. 29 U.S.C. § 216(b); see, e.g., Marfak v. Peretta, 10 Civ. 7785, 2011 WL 1758625 at *1 (S.D.N.Y. May 6, 2011) (Cote, D.J.) ("The FLSA imposes the obligation to pay unpaid overtime compensation and 'an additional equal amount as liquidated damages' on employers who violate its requirement that overtime wages be paid." (quoting 29 U.S.C. § 216(b))); Alejo v. Darna Rest., 09 Civ. 5436, 2010 WL 5249383 at *6 (S.D.N.Y. Dec. 17, 2010) (Peck, M.J.), report & rec. adopted as modified, 2011 WL 165413 (S.D.N.Y. Jan. 18, 2011).⁵ The FLSA has a three-year statute of limitations for willful violations. See 29 U.S.C. § 255(a). As the Second Circuit has noted, the FLSA's liquidated damages "are not a penalty exacted by the law, but rather compensation to the employee occasioned by the delay in receiving wages due caused by the employer's violation of the FLSA." Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999) (citing Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583-84, 62 S. Ct. 1216, 1233 (1942)); see also, e.g., Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 71 n.4 (2d Cir. 1997) ("Congress provided for liquidated damages as a means of compensating employees 'for losses they might suffer by reason of not receiving their lawful wage at the time it was due.'").

5 See also, e.g., Kopec v. GMG Const., No. 09-CV-2187, 2010 WL 3925210 at *3 (E.D.N.Y. Sept. 20, 2010) ("The FLSA entitles Plaintiffs to liquidated damages in an amount equal to 100% of the amount owed for minimum wage and overtime violations . . . ."), report & rec. adopted, 2010 WL 3909273 (E.D.N.Y. Sept. 30, 2010); Vasquez v. Ranieri Cheese Corp., No. 07-CV-464, 2010 WL 1223606 at *18 (E.D.N.Y. Mar. 26, 2010) ("FLSA entitles an employee to recover an amount equal to the unpaid wages (i.e., an additional 100% of the unpaid wages awarded) in the form of liquidated damages."); Dong v. CCW Fashion Inc., 06 Civ. 4973, 07 Civ. 9741, 2009 WL 884680 at *4 (S.D.N.Y. Feb. 19, 2009) ("The FLSA allows for an additional 100% of the amount owed for minimum wage and/or overtime violations, which means that those amounts are doubled."), report & rec. adopted, 2009 WL 884668 (S.D.N.Y. Apr. 1, 2009); Ting Yao Lin v. Hayashi Ya II, Inc., 08 Civ. 6071, 2009 WL 289653 at *7 (S.D.N.Y. Jan. 30, 2009) (Peck, M.J.), report & rec. adopted, 2009 WL 513371 (S.D.N.Y. Feb. 27, 2009).

Plaintiffs are entitled to federal liquidated damages of 100% for unpaid overtime wages. Accordingly, Carrasco is entitled to $24,433.50 and Ansurez is entitled to $12,477.50 in liquidated damages.

C. Spread of Hours

Under New York law, an "employee shall receive one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage required by [New York's minimum wage law], for any day in which . . . the spread of hours exceeds 10 hours." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4.⁶ Spread of hours is defined as "the interval between the beginning and end of an employee's workday" and "includes working time plus time off for meals plus intervals off duty." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.18. Plaintiffs also are entitled to liquidated damages equaling twenty-five percent of the wages owed under state law if the violation is "willful." N.Y. Labor Law §§ 198(l-a), 663(1). Since, defendants have failed to respond, the complaint's allegations of willful violations are accepted as true (see page 4 above), and plaintiffs are entitled to liquidated damages equaling twenty-five percent of the total spread-of-hours compensation under New York law. See, e.g., Fu v. Pop Art Int'l Inc., 2011 WL 4552436 at *4 (citing cases).

6 Most courts in this Circuit have ruled that New York's spread of hours provision applies only to employees earning minimum wage; other courts have applied New York's spread of hours provision to all employees, even those earning more than minimum wage. This Court has agreed with the majority view that the provision only applies to employees earning minimum wage. See Fu v. Pop Art Int'l Inc., 10 Civ. 8562, 2011 WL 4552436 at *6-7 (S.D.N.Y. Sept. 19, 2011 ) (Peck, M.J.), report & rec. adopted as modified on other grounds, 2011 WL 6092309 (S.D.N.Y. Dec. 7, 2011) (Cote, D.J.). In any event, the issue is not implicated here, as plaintiffs earned wages below minimum wage.

Here, plaintiffs' hourly pay was lower than the minimum wage (Dkt. No. 16: Faillace Aff. Ex. 9: Calculations Chart), and thus, they are entitled to spread-of-hours pay and liquidated damages equaling twenty-five percent of the total spread-of-hours compensation. Attorney Faillace explained the calculation methodology for unpaid spread of hours, as follows:

The unpaid spread of hours pay ("Unpaid Spread of Hours (SOH) Pay") is derived by multiplying (the number of SOH days per week) * (the number of weeks per period) * (the base rate of pay (or minimum wage)). The liquidated damages on SOH pay are all calculated at the rate of 25%, as it is a New York State remedy outside of the FLSA.

(Faillace Aff. ¶ 27g.)

This Court agrees with the methodology employed by plaintiffs' counsel. Thus, Carrasco and Ansurez are entitled to spread-of-hours pay and State liquidated damages thereon as follows:

Pay Period(Carrasco)	No. ofWeeks inPeriod	No. ofSOH DaysPer Weekin Period	MinimumWageRate	UnpaidSOH Pay	LiquidatedSOHDamages
2/1/2009 - 7/23/2009	25	6	$7.15	$1072.50	$268.13
7/24/2009 - 12/31/2009	23	6	7.25	1000.50	250.13
1/1/2010 - 2/28/2010	8	6	7.25	348.00	87.00
3/1/2010 - 5/30/2010	13	5	7.25	471.25	117.81
6/1/2010 - 8/30/2010	13	5	7.25	471.25	117.81
9/1/2010 - 11/30/2010	13	5	7.25	471.25	117.81
12/1/2010 - 12/31/2010	4	5	7.25	145.00	36.25
1/1/2011 - 2/28/2011	8	5	7.25	290.00	72.50
3/1/2011 - 5/31/2011	13	5	7.25	471.25	117.81
TOTAL	$4,741.00	$1,185.25

Pay Period(Ansurez)	No. ofWeeks inPeriod	No. ofSOH DaysPer Weekin Period	MinimumWageRate	UnpaidSOH Pay	LiquidatedSOHDamages
5/1/2010 - 12/31/2010	35	6	$7.25	$1522.50	$380.63
TOTAL	$1522.50	$380.63

(Faillace Aff. Ex. 9.) Thus, Carrasco and Ansurez are entitled to $5,926.25 and $1,903.13, respectively.

D. Prejudgment Interest

Plaintiffs also seek prejudgment interest on their state law claims pursuant to C.P.L.R. § 5001. (Dkt. No. 16: Faillace Aff. ¶ 27e; see also Dkt. No. 13: Pls. Br. at 12-13.) The Second Circuit has held that even where a plaintiff is awarded liquidated damages under the New York Labor Law, prejudgment interest still is appropriate. See, e.g., Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999); McClean v. Garage Mgmt. Corp., 10 Civ. 3950, 2012 WL 1358739 at *10 (S.D.N.Y. Apr. 12, 2012) (Cote, D.J.) ("Because NYLL liquidated damages and prejudgment interest 'serve fundamentally different purposes', the Court of Appeals has observed that plaintiffs may recover both for the same unpaid wages."); Olvera v. New Ko-Sushi, 10 Civ. 4643, 2011 WL 724699 at *5 (S.D.N.Y. Feb. 16, 2011). This is because "'[p]re-judgment interest and liquidated damages under the [New York] Labor Law are not functional equivalents.'" Fu v. Pop Art Int'l, Inc., 10 Civ. 8562, 2011 WL 6092309 at *2 (S.D.N.Y. Dec. 7, 2011) (Cote, D.J.) (quoting Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d at 265).⁷

7 Attorney Faillace correctly points out that interest is not awarded under the FLSA (Faillace Aff. ¶ 27g), as interest is assumed to be included under liquidated compensatory damages. See, e.g., Brock v. Superior Care, Inc., 840 F.2d 1054, 1065 (2d Cir. 1988) ("It is well settled that in an action for violations of the Fair Labor Standards Act prejudgment interest may not be awarded in addition to liquidated damages."); Paz v. Piedra, 09 Civ. 3977, 2011 WL 121103 at *13 (S.D.N.Y. Jan. 12, 2012); Fu v. Pop Art Int'l Inc., 2011 WL 6092309 at *2.

The statutory interest rate in New York of nine percent, C.P.L.R. § 5004, is only applied to the spread of hours claims. Because the unpaid spread of hours wages for each plaintiff occurred at different times, interest is calculated pursuant to C.P.L.R. § 5001(b) ("Where . . . damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date."). Prejudgment interest is calculated from the midpoint of plaintiffs' employment at Ritz Asia up to and including the date of this Report and Recommendation.⁸

8 Prejudgment interest applies only to the spread of hours compensatory damages and not also to the New York Labor Law liquidated damages on spread of hours. See, e.g., Chan v. Sung Yue Tung Corp., 03 Civ. 6048, 2007 WL 1373118 at *10 (S.D.N.Y. May 8, 2007) (Lynch, D.J.).

Carrasco began working for defendants on February 1, 2009 and ceased on May 31, 2011. (See page 3 above.) The midpoint date of his employment is April 2, 2010. The period from April 2, 2010 to July 11, 2012, the date of this Report and Recommendation, is 831 days. At a rate of nine percent simple interest per year, defendants owe Carrasco $971.45. Ansurez began working for defendants on May 1, 2010 and ceased on December 31, 2010. (See page 3 above.) The midpoint date of his employment is August 31, 2010, and the period from then to this Report's date is 679 days. Accordingly, defendants owe Ansurez $259.92 in interest.⁹

9 Interest will continue to accrue at the rate of $1.169 per day for Carrasco until judgment is entered and $0.3828 for Ansurez, or a total of $1.55 per day.

E. Defendants' Joint and Several Liability

Plaintiffs request that defendants be held joint and severally liable. (Dkt. No. 1: Compl. ¶¶ 17-27.) Under both the FLSA and New York Labor Law, the individual defendants are considered employers and thus individually liable along with Ritz Asia for damages. 29 U.S.C. § 203(d); N.Y. Labor Law §§ 2(5)-(6); see, e.g., Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139-40 (2d Cir. 1999); Liu v. Jen Chu Fashion Corp., 00 Civ. 4221, 2004 WL 33412 at *6 (S.D.N.Y. Jan. 7, 2004) (Peck, M.J.); Chang v. New Silver Palace Rest., Inc., 272 F. Supp. 2d 314, 318 & n.6 (S.D.N.Y. 2003) (test for employer under N.Y. Labor Law is same as Herman test under FLSA). Because defendants defaulted, defendants cannot now challenge liability, and thus all defaulting defendants will be held jointly and severally liable. See, e.g., Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158, 161 (2d Cir. 1992) ("[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability. . . ."), cert. denied, 506 U.S. 1080, 113 S. Ct. 1049 (1993); Mestousis Enters. Inc., v. Concord Blue Inc., 11 Civ. 3384, 2012 WL 254987 at *5 n.13 (S.D.N.Y. Jan. 27, 2012) (Peck, M.J.); Felix Produce Corp., v. New Lots Food Corp., No. 08-CV-5161, 2009 WL 2985444 at *2 (E.D.N.Y. Sept. 14, 2009) ("By virtue of the well-pleaded factual allegations in the complaint which are deemed true by virtue of [defendants's] default, the undersigned finds that [plaintiff] has established joint and several liability . . . ."); Ting Yao Lin v. Hayashi, 08 Civ. 6071, 2009 WL 289653 at *8 (S.D.N.Y. Jan. 30, 2009) (Peck, M.J.); La Barbera v. Les Sub-Surface Plumbing, Inc., No. 06 CV 3343, 2008 WL 906695 at *4 (E.D.N.Y. Apr. 3, 2008) ("[P]laintiffs have adequately pled, and by virtue of defendants' default, have established the joint and several liability of" defendants.); Chaman LAL Setia Exports Ltd. v. Sawhney, 00 Civ. 2838, 2003 WL 21649652 at *4 (S.D.N.Y. May 28, 2003) ("[D]efendants' joint and several liability is established by the allegations made in the complaint and [the District Judge's] granting of a default judgment.").

F. Attorneys' Fees and Costs

The FLSA and New York Labor Law also provide for attorneys' fees and costs to a successful plaintiff. 29 U.S.C. § 216(b); N.Y. Labor Law § 198(1-a); see also, e.g., Barfield v. N.Y.C. Health & Hosp. Corp., 537 F.3d 132, 151 (2d Cir. 2008); Alejo v. Darna Rest., 09 Civ. 5436, 2010 WL 5249383 at *6 (S.D.N.Y. Dec. 17, 2010) (Peck, M.J.), report & rec. adopted as modified on other grounds, 2011 WL 165413 (S.D.N.Y. Jan. 18, 2011) (McMahon, D.J.); Liu v. Jen Chu Fashion Corp., 00 Civ. 4221, 2004 WL 33412 at *6 (S.D.N.Y. Jan. 7, 2004) (Peck, M.J.); Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 625 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.).

Attorney Faillace stated that costs were $575: $350 filing fee for the complaint and three $75 charges for serving defendants. (Dkt. No. 16: Faillace Ex. 8: Fees & Costs Chart). While attorney Faillace attached Affidavits of Service for all three defendants, he failed to provide receipts for costs incurred for service (except for one affidavit reflecting payment of a $40 fee to the Secretary of State). (Faillace Aff. Ex. 2). The Court takes judicial notice of the Court's own filing fee amount of $350, but in the absence of supporting documentation as to the service costs, only $40 is recoverable. Fu v. Pop Art Int'l Inc., 10 Civ. 8562, 2011 WL 4552436 at *5 (S.D.N.Y. Sept. 19, 2011 ) (Peck, M.J.), report & rec. adopted as modified, 2011 WL 6092309 (S.D.N.Y. Dec. 7, 2011) (Cote, D.J.). Accordingly, the Court should award plaintiffs $390 for costs of filing fee and service.

Plaintiffs request $9,490 in attorneys' fees. (See page 4 above). Plaintiffs seek hourly rates of $450 per hour for attorney Faillace and $250 per hour for attorney Rivero. (Faillace Aff. Ex. 8: Fees & Costs.) "Courts in this District have determined in recent cases that the range of appropriate fees for experienced civil rights and employment law litigators is between $250 and $450." Gurung v. Malhotra, 10 Civ. 5086, 2012 WL 983520 at *11 (S.D.N.Y. Mar. 16, 2012); see also, e.g., Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509, 514 (S.D.N.Y. 2011) (Peck, M.J.) (approving partner's $450 hourly rate as "consistent with rates awarded by the courts in other FLSA or similar statutory fee cases," citing cases). However, in the only reported case dealing specifically with attorney Faillace, Faillace's request for $450 was rejected and he was awarded only $375 per hour. Santillan v. Herao, 822 F. Supp. 2d 284, 300 (E.D.N.Y. 2011). (The "nature of the work performed in this matter was relatively straightforward, particularly since the defendants defaulted, and no novel or complex issues were raised by plaintiff.") While this Court is aware that fees are somewhat lower in the Eastern District than the Southern, the Court finds it appropriate to allow only $375 per hour for attorney Faillace in this case.

Moreover, some of the billing entries are vague and the time spent excessive. The Court will not reimburse plaintiffs for 2.30 hours charged by attorney Faillace on November 3, 2011 for "Finalizing complaint" and 0.75 hours charged for filing the complaint with the Court. (Faillace Aff. Ex. 8: Fees & Costs.) The Court also will not reimburse plaintiffs for any of the hours charged by attorney Rivero (15.05 hours) on April 24-27, 2012 for "Drafting default motion" (5.50 hours), for "Preparation of the default motion" (4.75 hours), "Finalizing default motion" (3.80 hours) and "Filing default motion" (1.50 hours). (Faillace Aff. Ex. 8: Fees & Costs.) A review of the default motion shows that other than the damages chart (which the Court allows fees for), the motion papers appear to be largely "boiler plate" used by plaintiffs' counsel in other cases.

Accordingly, plaintiffs are entitled only to attorneys' fees of $3,525.

CONCLUSION

For the reasons stated above, the Court should enter judgment for Carrasco and Ansurez against the defendants, jointly and severally, as follows:

Unpaid Overtime Wages	$36,911.00
FLSA Liquidated Damages	36,911.00
Spread of Hours (inc. liquidated damages)	7,829.38
Prejudgment Interest on Spread of Hours10	1,231.37
Attorneys' Fees	3,525.00
Costs	390.00
Total	$86,797.75

10 Plus additional prejudgment interest of $1.55 per day from July 12, 2012 until entry of judgment.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: New York, New York

July 11, 2012

Respectfully submitted,

/s/_________

Andrew J. Peck

United States Magistrate Judge Copies to: Michael Faillace, Esq. (ECF)

West Village Ritz Corporation (d/b/a Ritz Asia) (Regular & Certified Mail)

Bancha Trugnipodia (Regular & Certified Mail)

Kanda Bancherban (Regular & Certified Mail)

Judge Denise L. Cote